Do Not Call Register Compliance and Enforcement Bulletin Issue 7

Issue 7

July - September 2011

Welcome to issue 7 of the ACMA's Do Not Call Register quarterly compliance and enforcement bulletin.

The Bulletin provides information about telemarketing and fax marketing complaints received during the third quarter of 2011 (Q1 of the Financial Year 2011-2012) and the action taken by the ACMA to address potential compliance issues.

In the July - September issue:

• Telko pays price for calling numbers on the Do Not Call Register
• Optus to improve Do Not Call Compliance
• Do Not Call Register complaint statistics – July to September 2011
• ACMA classification of complaints for the quarter
• Complaints by industry type
• The ACMA's compliance and enforcement outcomes for the quarter

Telko pays price for calling numbers on the Do Not Call Register

Telecommunications service provider Telko Pty Ltd has paid a $52,800 penalty after the Australian Communications and Media Authority found a call centre used by the company made telemarketing calls to numbers listed on the Do Not Call Register.

The ACMA received 91 complaints in three months about Telko from people who had registered their number on the Do Not Call Register. The calls offered to switch the consumer's phone plan to Telko.

The ACMA investigation found that Telko did not effectively supervise the Australian call centre that made telemarketing calls to numbers on the register. Even though the calls were made by the call centre, Telko has the ultimate responsibility to monitor compliance.

Businesses using an external call centre for telemarketing must make sure that the centre is checking its call lists against the Do Not Call Register before any telemarketing calls are made. They should also audit each call centre to ensure that it is only calling numbers that are not listed on the Do Not Call Register.

Optus to improve Do Not Call compliance

Optus is overhauling its telemarketing practices consistent with an enforceable undertaking recently accepted by the Australian Communications and Media Authority.

An ACMA investigation found Optus had inadequate telemarketing compliance systems, resulting in thousands of complaints about Optus telemarketers calling people with numbers listed on the Do Not Call Register. Many of these complaints came from Optus customers who had expressly opted out of receiving Optus marketing contact.

'While businesses are able to make telemarketing calls to their customers in some circumstances, they clearly need to respect any request by their customers that these calls stop,' said ACMA Chairman, Chris Chapman.

Under the court enforceable undertaking, Optus has agreed that for two years it will:

• Keep comprehensive records of telemarketing calls that it makes or that are made by call centres on its behalf
• Audit these records on a monthly basis, and report back to the ACMA (so as to give the ACMA early visibility to any problems)
• Implement robust procedures to record customers who have opted out of receiving further telemarketing calls

The ACMA's use of enforceable undertakings to achieve better compliance with the telemarketing requirements has proved effective over the past few years. After Telstra gave a similar undertaking in 2009, and worked assiduously to resolve the problems, the ACMA noted an 89 per cent fall in complaints about the telemarketing activities of Telstra.

Do Not Call Register complaint statistics – July to September 2011

All complaints are initially received by the Register Operator to check whether there may be a potential breach of the Do Not Call Register Act 2006 (the DNCR Act), the Telemarketing and Research Calls Industry Standard 2007 (TRCIS), or Fax Marketing Industry Standard 2011 (FMIS).

The DNCR Act prohibits a person from making a call or sending a fax to a number on the Do Not Call Register, subject to some exceptions.

The TRCIS establishes minimum standards for telemarketing calls in four main areas:

• restricting the calling hours/days for making telemarketing and research calls
• requiring provision of specific information by the caller
• providing for the termination of calls
• requiring callers to enable calling line identification.

The FMIS applies to all participants in the fax marketing industry and to all marketing faxes sent to Australian fax numbers. The FMIS establishes minimum standards for fax marketing in four main areas:

• restricting the hours/days for sending marketing faxes
• requiring certain information to be provided in the content of the fax
• requiring fax marketers to provide an opt-out functionality; and
• restricting the number of marketing faxes that can be sent to a particular number over a particular period

If a complaint raises a potential breach, it is forwarded to the ACMA for assessment.

Figure 1 shows historical complaint trends by quarter. During July to September 2011, complaint numbers increased by 31% compared with the previous quarter. However, telemarketing complaints increased by 39% while fax marketing complaints decreased by 33%. This significant decrease in fax marketing complaints is primarily the result of the ACMA's work in engaging with the fax marketing industry to improve its compliance following the expansion of the DNCR Act to include fax marketing.

Figure 1: Historic complaint trends

* Fax Marketing introduced 31 May 2010

ACMA classification of complaints for the quarter

When a complaint is forwarded to the ACMA, it is assessed to determine whether it raises any potential breaches of the DNCR Act, the TRCIS or the FMIS. There are four broad classification types:

• Complaints about a prohibited call or fax to a registered number (potential breach of the DNCR Act)
• Complaints about a call that did not meet one of the minimum industry requirements (potential breach of the TRCIS)
• Complaints about a call that raises a potential breach of both the DNCR Act and the TRCIS
• Complaints that, after assessment by the ACMA, do not raise any potential breaches of the DNCR Act or the TRCIS.

Figure 2 shows the classification of the complaints received by the ACMA for the quarter.

Figure 2: Quarterly complaint classification

Complaints by industry type

Figure 3 shows the breakdown of complaints by industry type for complaints received this quarter based on the type of product or service offered to consumers. Figure 3 illustrates that:

• Complaints about computer services, particularly businesses offering online technical support, represented 54% of the complaints received by the ACMA; and
• Complaints about the communications industry, with the majority offering telecommunication services, were also high and accounted for 11% of complaints

Figure 3: Breakdown of complaints by industry sector

The ACMA's compliance and enforcement outcomes for the quarter

The ACMA adopts a staged approach to compliance which involves both informal and formal actions.

The action taken by the ACMA is proportionate to the seriousness of the non-compliance.

When a complaint is received about a business for the first time, the ACMA sends a letter to the telemarketer or fax marketer to advise that a complaint has been received and educate them about their obligations under the Do Not Call legislation.

Where further complaints are received, the ACMA may send a warning letter. Complaints received after a warning letter is sent may become the subject of an investigation.

Depending on the circumstances, the ACMA may need to escalate regulatory action. For further information, refer to the ACMA's telemarketing and fax marketing complaint handling policy.

Figure 4. Informal compliance action taken by quarter

Enforcement action taken this quarter

In September 2011, Telecommunications service provider Telko Pty Ltd paid a $52,800 penalty after the Australian Communications and Media Authority found a call centre used by the company made telemarketing calls to numbers listed on the Do Not Call Register. The ACMA received 91 complaints in three months about Telko from people who had registered their number on the Do Not Call Register.

Enforceable Undertaking accepted by the ACMA

• Optus Pty Ltd

Formal Warning issued by the ACMA

• General Green Pty Ltd trading as Solar Today
• Brian Hurrell trading as All State Tile, Grout and Carpet Cleaning

Figure 5. Enforcement outcomes

Contact information

All enquiries about the Do Not Call Register can be made by visiting www.donotcall.gov.au or by calling 1300 792 958.